Home-made Wills – Payne v Payne [2018] EWCA 985

 In Wills

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Case Summary from LawSkills | Private Client specialist trainersHome-made Wills and litigants in person are certainly a sign of our more frugal times. A recent case on such a Will and whether it was properly attested & therefore valid is Payne v Payne [2018] EWCA 985.

A judge had decided that two contested Wills of John Payne were both invalid: one made in 1998 & the other in 2012. This current case was an appeal against the decision that the earlier Will made in 1998 was invalid; there was no appeal against the decision on the 2012 Will.

John Payne had been married twice: his first marriage lasted 30 years and ended in divorce; the second was to Kim and she survived him. The 1998 Will used a Will form and appointed Kim as executor and effectively left his whole estate to her.

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The 2012 Will was also homemade. This Will was made a few months before John Payne’s death. It was typed but not professionally drawn and organised by John’s son. It appointed John and Thomas, the deceased’s grandson as executors and after a legacy of £15,000 each for Thomas and for Kim it left the bulk if his estate to his son. The 2012 Will had been witnessed by Thomas’s girlfriend and her mother. There was manifest unreliability on the part of the witnesses as to its validity and the judge decided the deceased lacked knowledge & approval of it.

This matter was part of various court claims between the two warring families.

Problems with the 1998 Will

There was a space on the form for the testator to sign but the form did not provide a designated space for the witnesses to sign – only to put their names & addresses and occupations. The two witnesses had put in their details in capital letters and so had not ‘signed’ the Will.

Problems of litigants in person

  • A lack of awareness of court rules and procedure
  • The original Will had not been produced to the Court, only a cropped photocopy
  • The claimant only relied on one ground for challenging the later Will & gave no evidence as to how the 1998 Will had been made – no statements from witnesses

The Trial Judge therefore had difficulties in making a decision:

  • Without original Will
  • With only a cropped copy showing no signatures by the witnesses
  • No oral evidence from witnesses
  • Lack of reliability of evidence from Kim anyway

So the Judge had to conclude that Kim had failed to discharge the burden of proof to show that the 1998 Will was valid. The appeal against this decision was on the basis that it was arguably wrong as to the question of compliance with formal validity requirements contained in the wording of s.9 Wills Act 1837 at time the Will was executed.

It was essential to see original Will in order to establish the correct parties and other persons who may need to be served. Inspection of the original Will revealed the reason for a ‘cropped’ copy (the form was printed on foolscap paper) & why the witnesses had ‘signed’ as they did – no designated space for their signatures was included.

The Court confirmed that there was a strong public interest in valid testamentary dispositions being upheld and so granted Kim’s request to adduce oral evidence of witnesses to 1998 Will who confirmed they had signed (albeit in capitals) in the correct way. As a result the conclusion was that the 1998 Will was VALID.

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